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Repeal This: The Concept of Waqf for the Settler’s Limitless Generations Is Archaic

By Tahir Mahmood

Aug 1, 2015

The archaic concept of Waqf for the settler’s limitless generations is out of tune with the social and economic circumstances of our time. (Source: wikiHow)

Our statute book is full of obsolete laws, some dating back to the 19th and early 20th centuries. Having outlived their utility, these laws need to be repealed, for which recommendations have been made from time to time by various government-appointed bodies. A commission on the review of administrative laws, popularly known as the P.C. Jain Commission, had been constituted in 1988. In its report of 1998, the commission had recommended the repeal of over 1,300 Central acts, which it had classified into various categories, including “amending acts” and “validating acts” — those that had amended a pre-existing law or had restored the legal validity of a law or custom derecognised by a court ruling. In the latter category, consisting of 20 acts, were the two Muslim Waqf validating acts of 1913 and 1930.

In May last year, the new government decided to remove more outdated enactments from the overcrowded statute book and constituted the Ramanujam Committee to identify acts for repeal. The Ramanujam Committee submitted a four-volume report, taking into account the recommendations of both the P.C. Jain Commission and the Law Commission. On the basis of this report, the government initiated the process of getting rid of outdated laws. Two laws were enacted by Parliament — the Repealing and Amending Act and the Repealing and Amending (Second) Act. They were notified in May.

Finding the two Waqf validating acts in the list of laws recommended for repeal, concerned Muslim leaders approached former Minority Affairs Minister K. Rahman Khan. Answering his question on the issue in Parliament on May 5, the current law minister reportedly said that the acts would not be repealed. Later, the minority affairs ministry opined that these were obsolete and should have been repealed by the Waqf (Amendment) Act, 2013. These were then included in the list of acts in the Repealing and Amending (Third) Bill, which was approved by the cabinet last month.

Waqf is an institution of Muslim law by which property is dedicated in perpetuity for religious or charitable purposes. Apart from public Waqfs like mosques and Dargahs, there is a category of Waqf alal Aulad (Waqf for descendants), whereby property is dedicated to one’s descendants and, ultimately, for charitable objects after the extinction of the family. In 1891, the Calcutta High Court held that such a Waqf could not be given legal effect since a “dedication must not depend upon an uncertain contingency, such as the possible extinction of the family”. Deciding an appeal in 1894, the Privy Council upheld the Calcutta High Court’s opinion, saying that such Waqfs are legal arrangements for “the aggrandisement of a family”.

Muslim religious leaders of the time objected to these decisions and demanded legislative intervention. A bill superseding the Privy Council decision was moved in the Central legislature by Muhammad Ali Jinnah and was enacted as the Mussalman Waqf Validating Act, 1913, declaring that family Waqfs would continue to be legally valid. The Privy Council ruled in a 1922 case that the new act would apply only to family Waqfs created after the enforcement of that act. A second Waqf validating act was then passed in 1930 to give retrospective effect to the first law.

These are the two Waqf acts slated for repeal. If a “validating” law is repealed, it does not have the effect of invalidating once again what that law had validated — just as the repeal of an amending law does not nullify the amendments it had made in an earlier law. In both these cases, the only purpose is to remove from the statute book an old law that has served its purpose. An explanation to this effect was given in both the Repealing and Amending Acts of 2015 and is also found in the bill for enacting the third such act. Repeal of the two Waqf validating acts will not, therefore, automatically have the effect of invalidating the concept of family Waqfs.

The archaic concept of Waqf for the settler’s limitless generations is out of tune with the social and economic circumstances of our time. The institution was abolished by law in Syria, Egypt, Libya and the UAE, in 1949, 1952, 1973 and 1980, respectively.

Tahir Mahmood is former chair, National Commission for Minorities, and ex-member, Law Commission